Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 045174
SIMS , Acting P.J.A jury convicted defendant Kenneth Harvey Tincher of receiving stolen property, i.e., license plates (Pen. Code, § 496, subd. (a); undesignated section references are to the Penal Code). In bifurcated proceedings, the trial court found two strike priors (§ 667, subds. (b)-(i)) and three prior prison term allegations (§ 667.5, subd. (b)) to be true.
Sentenced to state prison for an indeterminate term of 25 years to life and a consecutive determinate term of three years, defendant appeals, contending (1) the evidence supports two, not three, prior prison terms and (2) counsel rendered ineffective assistance in failing to object to certain testimony. The Attorney General concedes that the evidence supports two, not three, prior prison terms. We agree and will reverse the trial court’s finding on the third prior prison term allegation. We conclude that defendant has failed to demonstrate ineffective assistance of counsel and will otherwise affirm the judgment.
FACTS
About 6:00 p.m. on August 9, 2004, while talking on the telephone with her mother, Janine Chandler looked out the window of her home and noticed a white car driving around her cul-de-sac on Bidwell Street in Davis. Her mother mentioned that defendant, Chandler’s first cousin, might be “on the run” from something. Chandler mentioned the white car to her mother and 30 seconds later, defendant walked by Chandler’s window. He then rang her doorbell and knocked on her door. Not knowing why defendant was on the run, Chandler locked the door, stood by the door for a few minutes and then called the police.
Shortly thereafter, Davis Police Officers Michael Moore and Steve Ramos arrived at Chandler’s and found defendant lying on the grass near her apartment. Prior to arrival, Officer Moore ran defendant’s name and date of birth and found no wants or warrants in the system. A white Ford Crown Victoria was parked next to the curb closest to Chandler’s apartment. Officer Moore asked defendant for identification. Defendant claimed he had none and identified himself as “Jim Clark” with a birth date of April 26, 1958. Officer Moore learned from dispatch that there were no outstanding warrants for such person. Officer Moore asked defendant why defendant was there. Defendant explained he was there to see Chandler, his cousin, and had been dropped off by a friend. Defendant denied knowing anything about the white car parked at the curb. Having obtained defendant’s consent, Officer Ramos searched defendant and found Ford car keys and a torn piece of envelope with Chandler’s name and phone number. Officer Jeff Beasley who had arrived discovered that the Ford car keys in defendant’s possession opened the white car parked at the curb. Officer Beasley felt the rim of a tire on the white car and found that it was warm suggesting that the car had just been driven. Defendant then said the Ford car keys belonged to his brother’s car. Defendant claimed he was planning to work on the white car. When Officer Beasley ran the license plate (5BJK126) on the white car, he learned that it was assigned to a Chevrolet registered to Karina Ritchie of Galt. Officer Beasley then ran the vehicle identification number and learned that the white car belonged to Reba and Bradley Tincher who officers later learned were defendant’s mother and brother. The proper license plate assigned to the white car was 3DGZ155. Officers suspected the car was stolen and searched it. On the driver’s side floorboard, Officer Beasley found a wallet with defendant’s driver’s license and social security card. On the back seat under clothing and a box, Officer Beasley found a license plate (4WQY719) later learned to belong to a Chevrolet registered to Robin Grubel of Sacramento. In the car, the other half of the envelope (seized from defendant’s person) was found.
Officer Moore interviewed Chandler who confirmed that defendant is her cousin. Officer Moore understood from dispatch that Chandler believed that defendant may be wanted. Chandler explained she saw a white car in the street just prior to defendant knocking on her door. Chandler provided to Officer Moore the Placerville telephone number for defendant’s mother and brother. When confronted with his true identity, defendant initially denied it but eventually said that he sometimes went by his real name.
Officer Moore talked on the telephone with Bradley Tincher, defendant’s brother. Officer Moore asked Bradley whether defendant had permission to drive the car, when Bradley had last seen defendant and whether defendant was in any kind of trouble with police.
Based on Chandler’s belief that defendant may be wanted and learning that defendant resided in El Dorado County, Officer Moore spoke to El Dorado County Deputy Sheriff Foxworthy. Deputy Foxworthy explained that there was a current case against defendant. A warrant had not yet been issued although charges were anticipated. Deputy Foxworthy referred Officer Moore to the district attorney’s office and asked that the white car be searched for a black-handled hammer, evidence in the El Dorado case. Officer Ramos found such a hammer in a tool box in the back seat. Later on August 9, 2004, Officer Moore received a fax from El Dorado County with a probable cause declaration which described a family fight between defendant and his brother. At the time of trial, Officer Moore did not know whether any charges had been filed in El Dorado County against defendant in connection with the fight which the officer believed occurred just days if not hours before the current charge. Officer Moore arrested defendant for possession of stolen property. When advised of his right to remain silent, defendant stated he understood and would only respond to the questions he wanted to answer. He explained he gave a false name because he did not know what the officer wanted and that he was afraid because his license had expired. He denied being related to the white car or license plates in any way.
Chandler stated that the next day, August 10, 2004, Reba and Bradley Tincher picked up the white car which remained parked at the curb in front of Chandler’s building.
The prosecutor presented additional evidence related to the license plates found on and in the white car. Earlier on August 9, 2004, Grubel and her gardener, Steve Bell, found a man near Grubel’s Ford Escort and confronted him about what he was doing. The man claimed the car belonged to him or his girlfriend. When Grubel and Bell explained that the car belonged to Grubel, the man seemed annoyed and left with his backpack. Later that evening, Grubel received a call from Davis Police and learned they had the plate to her car (4WQY719). She checked the front and back of her car and discovered plates which belonged to the white car (3DGZ155). Grubel had given no one permission to use her plates.
On August 19, 2004, neither Grubel nor Bell positively identified defendant from a photo lineup as the man near Grubel’s car. Bell picked defendant’s and another person’s photo and was 60 to 70 percent certain with respect to the latter and 40 percent certain with respect to defendant. Grubel was 75 percent certain it was another person in the lineup.
Ritchie received a call from Davis Police that they had the plate to her car (5BJK126). She checked her car and discovered a plate which belonged to Grubel’s car (4WQY719). Ritchie had given no one permission to use her plates.
No useable fingerprints were found on the stolen license plates.
Additional facts relevant to defendant’s contentions will be recounted in our discussion of the same.
DISCUSSION
I
Defendant contends and the Attorney General agrees that the evidence supports the trial court’s finding of two, not three, prior prison terms. We have reviewed the record and agree.
The information alleged two strike priors (§ 667, subds. (b)-(i)), a Yolo County felony conviction on May 1, 1981, for discharging a firearm at an inhabited dwelling (§ 246) and a Sacramento County felony conviction on November 6, 1987, for witness intimidation (§ 136.1). The information also alleged three prior prison term allegations (§ 667.5, subd. (b)), a Sacramento County “felony conviction” on November 7, 1989, a Sacramento County “felony conviction” on November 6, 1987, and an El Dorado County “felony conviction” on November 28, 1995. At the bifurcated hearing on the priors, the parties stipulated that defendant had not remained free of prison custody or free of felony conviction for five years from his first state prison sentence in 1989 to his release in February 2002. The prosecutor introduced documentation reflecting that on May 1, 1981, defendant pled guilty to discharging a firearm at an inhabited dwelling house and was granted probation for a term of four years subject to certain terms and conditions including 270 days in jail. On July 15, 1987, defendant entered a plea and was convicted of indecent exposure. On August 28, 1987, the court granted probation for a term of five years subject to 180 days in jail. On September 29, 1987, defendant entered a plea of guilty and was convicted of witness intimidation. On November 6, 1987, the court granted probation for a term of five years subject to 90 days in jail. On November 7, 1989, the court revoked probation. On December 5, 1989, the court sentenced defendant to state prison for the midterm of three years for witness intimidation and a consecutive one-third the midterm or eight months for indecent exposure. On May 10, 1995, he was discharged from state prison. On November 28, 1995, defendant entered a plea and was convicted of two counts of annoying or molesting a child and a prior prison term was found true. The court sentenced defendant to state prison for an aggregate term of four years and eight months. In February 2002, defendant was discharged from state prison. On August 9, 2004, defendant was arrested on the current charge.
The court found the two strike priors to be true as well as the prior prison sentence enhancements “[as] alleged in the complaint.”
At sentencing on September 28, 2005, defense counsel noted that defendant served one prior prison term for two of the convictions so that only two prior prison term enhancements should be imposed. Neither the court nor the prosecutor had any response. The court imposed three years for the prior prison term enhancements, one year for each.
On October 12, 2005, the prosecutor moved to modify defendant’s sentence, arguing that the evidence supported two, not three, prior prison terms. The court commissioner, Honorable Charles R. Van Court, denied the motion, noting that it had been litigated before another judge who found three separate prior prison terms.
In considering whether sufficient evidence supports the trial court’s finding on the enhancement, we review the record in the light most favorable to the trial court’s finding and determine whether a reasonable trier of fact could have found the enhancement allegation true beyond a reasonable doubt. (People v. Elmore (1990) 225 Cal.App.3d 953, 959-960.)
Section 667.5 provides, in relevant part, as follows:
“(b) . . . [W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.
[¶] . . . [¶]
“(g) A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes . . . .”
A defendant serves but one prior prison term for “‘one period of prison confinement, or block of time, for multiple offenses or convictions.’ [Citation.]” (People v. Perez (1992) 4 Cal.App.4th 893, 911.)
Here, the record reflects that defendant served one prior prison term for two felony convictions, witness intimidation and indecent exposure, beginning in 1989. He was discharged in May 1995. Defendant served another prior prison term for two counts of child molestation beginning shortly thereafter. He was discharged in February 2002 and arrested for the current offense in August 2004. Thus, the evidence supports two, not three, prior prison term allegations.
We will reverse one of the prior prison term findings and order the trial court to prepare an amended abstract of judgment accordingly. As the Attorney General notes, the abstract incorrectly reflects that an enhancement of one year was imposed pursuant to section 667, subdivision (e)(2). We will order the abstract corrected accordingly. We also note that the abstract fails to reflect that defendant was sentenced pursuant to section 667, subdivisions (b) to (i); there is a box to be checked.
II
Defendant contends that counsel rendered ineffective assistance in failing to object to inadmissible other crimes evidence under Evidence Code sections 1101 and 352. Defendant claims the inadmissible evidence was that he was “on the run,” Chandler’s belief that defendant was wanted in El Dorado County and that defendant possessed a hammer used in the El Dorado case. Defendant argues the other crimes evidence was inadmissible to show that he had the propensity to commit the crime charged, receiving stolen property, and prejudicial because it suggested he is a violent offender. Defendant asserts there was no nexus between the El Dorado crime and the crime charged to introduce the evidence to show motive. Defendant argues the lack of the preliminary fact, that is, “a warrant or other evidence tending to establish the police actively pursued [defendant],” made the evidence inadmissible to show motive. In his reply brief, defendant claims there was no evidence that he knew of the investigation or that he was wanted because he did not testify. Defendant also claims in his reply brief that the jury was not given a limiting instruction on the other crimes evidence.
Defendant claims Chandler testified that she believed that defendant had an outstanding warrant. His record citations do not support this claim. Officer Moore testified that dispatch and Chandler told him that she believed defendant may be wanted for some reason.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674, 693-694, 697-698]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) To demonstrate prejudice, defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (People v. Williams (1997) 16 Cal.4th 153, 215.)
Defendant cannot demonstrate that had defense counsel objected, a more favorable result would have occurred. A trial court previously ruled that testimony regarding an outstanding warrant was admissible to prove motive. Defendant’s first trial on the charge of receiving stolen property resulted in a mistrial after the jury was deadlocked. Prior to that trial, defendant’s then defense counsel moved to exclude testimony regarding an outstanding warrant from another county. The court denied the motion on the basis that testimony that defendant believed there was a warrant would tend to prove his motive to run. New defense counsel’s performance in defendant’s second trial was not deficient in deciding not to reargue the motion.
The record reflects the following discussion on the motion:
Evidence Code section 1101, subdivision (b), provides in relevant part that “evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive . . . .” other than to prove criminal disposition or propensity is relevant and admissible. In determining whether circumstantial evidence of a prior uncharged bad act is admissible, the court considers the materiality of the fact sought to be proved, the tendency of the uncharged bad act to prove the material fact and the existence of any rule requiring exclusion. (People v. Miller (2000) 81 Cal.App.4th 1427, 1447.)
In admitting evidence of other crimes, the court must weigh the probative value of such evidence which must be substantial against the danger of undue prejudice, of confusing the issues or of misleading the jury. (People v. Carter (2005) 36 Cal.4th 1114, 1149.)
Motive is not an element of the crime of receiving stolen property (§ 496, subd. (a); CALJIC Nos. 14.65 [elements of receiving stolen property], 2.51 [motive]) but the intermediate fact of motive tended to prove the ultimate facts of identification and the required element of knowledge. (People v. Lewis (2001) 26 Cal.4th 334, 370.)
“Sections 400 through 405 of the Evidence Code define the terms and set forth the procedures to be utilized where the admissibility of evidence is dependent upon the existence of a preliminary fact. As used in these sections, a ‘“preliminary fact” means a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence.’ (Evid. Code, § 400.)” (People v. Herrera (2000) 83 Cal.App.4th 46, 60.)
Evidence Code section 402 provides: “(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article. [¶] . . . [¶] (c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.”
Under Evidence Code section 403, subdivision (a), “[t]he proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the preferred evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: [¶] (1) The relevance of the proffered evidence depends on the existence of the preliminary fact; [or] [¶] (2) The preliminary fact is the personal knowledge of a witness concerning the subject matter of his testimony.”
Here, defendant contends the missing preliminary fact was a warrant or other evidence that the authorities were actively pursuing him. Simply stated, defendant’s claim fails because Evidence Code section 403 applies only when the preliminary fact “is disputed.” (Evid. Code, § 402, subd. (a).) To the extent defendant claims counsel’s performance was deficient in failing to present evidence to dispute the preliminary fact, the claim is rejected. Although Officer Moore did not know whether a warrant issued, there was “other evidence” that El Dorado County authorities were actively pursuing defendant. A probable cause declaration had been issued and the case had been referred to the prosecutor to file charges. On this record, we cannot say counsel’s performance was deficient in failing to present contrary evidence.
The jury learned few details about the prior crimes, only that there had been a fight between defendant and his brother, El Dorado County law enforcement was investigating defendant’s involvement, somehow a hammer was evidence in the case, charges were anticipated, and a probable cause declaration had been issued but a warrant had not yet been issued. The probative value was substantial. The prosecutor used the circumstantial evidence to argue defendant’s motive of using stolen plates to avoid apprehension by El Dorado County law enforcement. There was no danger the jury would have confused the issues.
We conclude that defendant has failed to establish ineffective assistance of counsel.
DISPOSITION
The judgment is modified, reversing one of the prior prison term findings. The trial court is directed to prepare an amended abstract of judgment accordingly as well as deleting any reference to an enhancement pursuant to Penal Code section 667, subdivision (e)(2), but checking the box reflecting defendant was sentenced pursuant to Penal Code section 667, subdivisions (b) to (i), and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: MORRISON , J., ROBIE , J.
“THE COURT: All right. There is also motion [sic] we talked about -- a motion to exclude testimony regarding an outstanding warrant
“[DEFENSE COUNSEL]: Right.
“THE COURT: -- from another county. And when I indicated to counsel that on the basis of motive that’s the motive why he would run, then I would allow testimony that he believed there was a warrant, not whether there was or was [sic] in reality, whether they believed there was a warrant which would give motive to run.
“[DEFENSE COUNSEL]: That can be proven.
“THE COURT: Yes.”